H and Others (Minors), In re

Key legal principles and grounds of decision:

The House of Lords held that, for the purposes of Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction 1980, "acquiescence" depends on the actual subjective state of mind of the wronged parent. The burden of proving consent or acquiescence rests on the abducting parent. A trial judge determines acquiescence as a question of fact and may properly weigh contemporaneous words and acts more heavily than later assertions of intention. There is a single, narrow exception where the wronged parent's words or actions are so clear and unequivocal as to have led the other parent reasonably to believe that the wronged parent will not seek the summary return; in such exceptional circumstances the wronged parent will be held to have acquiesced. Applying these principles, the House of Lords held that the father had not acquiesced where, by reason of his religious obligations to pursue remedies through a Beth Din, he pursued religious proceedings in Israel before invoking the Convention and did not unequivocally abandon his right to summary return under Article 12; accordingly the summary return of the children to Israel was ordered.

Background and facts:

The respondent mother, an Orthodox Jew, removed three children from Israel to England without the consent of their father. The father was an Orthodox Jew resident in Israel and asserted rights of custody in Israel. After the removal, proceedings were begun in England under the Hague Convention requesting summary return of the children to Israel.

Procedural history:

• At first instance Sumner J. found the children were habitually resident in Israel and that the father had not acquiesced; he ordered summary return.
• The Court of Appeal (Stuart-Smith, Waite and Otton L.JJ.) reversed, finding acquiescence and exercising discretion under Article 13 to refuse summary return; the father appealed to the House of Lords.
• The House of Lords allowed the appeal and ordered the immediate return of the children.

Nature of the claim and issues:

• The father sought summary return of the children under the Hague Convention 1980, as incorporated into UK law by the Child Abduction and Custody Act 1985.
• The central issues were whether the father had rights of custody in Israel and whether he had consented to, or subsequently acquiesced in, the wrongful removal within the meaning of Article 13 of the Convention.

Issues framed by the court and reasoning:

• The principal legal question was whether "acquiescence" in Article 13 is to be assessed by objective outward conduct as perceived by the other parent or by the actual subjective intention of the wronged parent. The House held that Article 13 looks to the actual subjective state of mind of the wronged parent and that acquiescence is a question of fact for the trial judge, with the burden on the abducting parent to prove it.
• The court explained that the judge may legitimately attach more weight to contemporaneous words and conduct than to subsequent assertions, but that this remains a question of fact and not a rule of law converting subjective intention into irrelevance where positive acts have occurred.
• The House recognised a narrow exception where words or actions are so clear and unequivocal that the wronged parent is estopped from asserting the contrary; such cases are exceptional.
• Applying these principles to the facts, and considering the father's religious obligation to submit disputes to a Beth Din, the court concluded that his recourse to religious proceedings and his request for access at Passover did not amount to clear and unequivocal conduct inconsistent with seeking summary return under the Convention.

Wider implications: The judgment clarifies the meaning of "acquiescence" under Article 13, emphasising a subjective inquiry subject to a limited estoppel-like exception, and confirms the primacy of the Convention's objective to ensure prompt return unless the abducting parent proves consent or acquiescence.

Appeal allowed. The House held that "acquiescence" under Article 13 of the Hague Convention depends on the actual subjective intention of the wronged parent and is a question of fact for the trial judge with the burden upon the abducting parent to prove it. Only in exceptional cases where the wronged parent's words or actions are clearly and unequivocally inconsistent with seeking summary return will the wronged parent be held to have acquiesced. On the facts the father had not acquiesced and the summary return of the children to Israel was ordered.

At first instance Sumner J. ordered the summary return of the children. The Court of Appeal (Stuart-Smith, Waite and Otton L.JJ.) reversed and held that the father had acquiesced and refused summary return. The House of Lords allowed the father's appeal ([1997] UKHL 12) and ordered immediate return.